T.N. Eranaika vs Raghu and Others

Mohamed Anwar, J.-In the light of the law laid down by the Supreme Court in the case of Goutam Kundu v State of West Bengal, AIR 1993 SC 2295, our order was pronounced in this reference matter dismissing the petition in C.R.P. No. 2021 of 1996 reserving our reason for its dismissal. Now we proceed to record our reason for the same.

REASON

In view of the two conflicting decisions of the Single Bench of this Court in Smt. Revamma v Shanthappa, AIR 1972 Mys. 157 and Gangadharappa v Basavaraj, 1995(5) Kar. L.J. 134, the following question of law was raised by the learned Judge H.N. Tilhari in C.R.P. No. 2021 of 1996 for resolution of the point in controversy by a Division Bench:

"Whether the Court can compel a person to be a witness and for medical examination and blood group test keeping in view Article 21(1) of the Constitution of India, and to settle the conflict arising from the two Single Judge''s decisions of this Court in Revamma''s case and in Gangadharappa''s case, by deciding which of the above two Single Judge''s decisions lays down correctly the law?"

Accordingly, the matter was placed before us for decision on the above question.

The undisputed facts of the case giving raise to the above question are that a partition suit in Original Suit No. 306 of 1991 pending on the file of the Trial Court was instituted by respondent 1-Raghu - a minor represented by his guardian-mother (hereinafter referred to as ''the plaintiff''), against petitioner, respondents 2 and 3, arraying them as defendants 1, 2 and 3, respectively, for partition and possession of his share in the suit property alleging that he is the son of petitioner/defendant 2 and that the suit property being the joint family property of the parties, he is entitled to his specified share therein. The plaintiff''s claim was being contested by the petitioner/defendant denying, inter alia, that plaintiff is his son. During pendency of the suit. I.A. No. 4 under Order 26, Rule 10-A of the Civil Procedure Code was filed by the petitioner before the Trial Court praying to subject the samples of the blood of the plaintiff and of the petitioner to scientific investigation and blood group test by an expert to be appointed as the Court Commissioner and for his report, to enable this defendant to prove his said defence in the suit. That application was resisted by the plaintiff on the ground that in law he cannot be compelled to subject himself to medical examination for the purpose of the test of his blood group and that on merits as well no good purpose would be served by appointment of the Commissioner as prayed in the application.

The learned Trial Judge has, by his considered order dated 9-2-1995, rejected the petitioner''s said I.A. No. 4. Being aggrieved, that order was challenged by him in revision before this Court in C.R.P. No. 2021 of 1996, which when came up for hearing before the learned Single Judge, the aforesaid question was raised by him and a reference has been made for its determination by a Division Bench in view of the aforementioned two conflicting decisions of the learned Single Judge of this Court.

In the case of Revamma, supra, the question that arose for determination by the Single Bench of this Court was: "Whether it is open to the Court to compel a person to undergo medical examination". On a review of the case-law, the learned Single Judge, relying on a decision of the Gujarath High Court in Bipinchandra Shantilal Bhatt v Madhuriben Bhatt, AIR 1963 Guj. 250 and the decision of the Madras High Court in RM. PM. Ranganathan Chettiar v Chinna Lakshmi Achi, AIR 1955 Mad. 546, held: "A party cannot be compelled to undergo medical examination". In a later decision in the case of Gangadharappa, supra, while dealing with a similar application as the one in hand, another Single Bench, referring to the scope of Article 20(3) of the Constitution of India, and without referring to an earlier decision in the case of Revamma, took the contrary view on the point and held:

"3... Therefore, it is clear from clause (3) of Article 20 that the protection under this clause is confined to Criminal proceedings or proceedings of Criminal nature before a Court of law or other Tribunal before whom a person may be accused of an ''offence'' as defined in Section 3(38) of the General Clauses Act. It would not, therefore, extend to parties and witnesses in Civil proceedings other than Criminal...".

Taking this view, the learned Judge proceeded to allow that application observing:

"4... In my considered view, the Trial Court in order to enable the defendant to prove that the plaintiff was not born to him and he is not entitled to claim partition in the suit properties ought not to have rejected I.A. No. 8".

Therefore, the precise point which we are called upon to decide by the question under reference is "whether a party to or a witness in a civil proceeding before a Court of law could be compelled to give sample of his blood for chemical analysis for group testing by an expert, or subject himself to the medical examination, against his will?" This question finds its complete and effective answer in the Supreme Court''s decision in Goutam Kundu''s case, supra where the same question was dealt with by Supreme Court with reference to the English law and the decisions of the various High Courts of our country. At paragraph 18 of its judgment, the Supreme Court has authoritatively pronounced the law on the point as follows:

"18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by Courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal".

(emphasis supplied)

At paragraph 26 of the judgment, various legal proposition in this behalf are enunciated by the Supreme Court of which proposition No. (5) is relevant for our purposes which states:

"(5) No one can be compelled to give sample of blood for analysis".

Therefore, in view of this law laid down by the Supreme Court, we hold that the view taken by this Court in the case of Revamma, that a party or a witness cannot be compelled to undergo medical examination without his consent lays down the correct legal position while the contrary view taken by the learned Single Judge in a later decision in the case of Gangadharappa is not the correct statement of law. The question under reference stands answered accordingly.